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Friday, February 3, 2012

Union sues The Telegraph, Pennichuck to keep salaries secret

A Superior Court judge issued a temporary restraining order Thursday, blocking Pennichuck Corp. from releasing the salaries of its employees and prohibiting The Telegraph from publishing the information.

This came after a union representing a majority of the company’s workers filed a lawsuit Wednesday arguing that the public did not have a right to know how much they earn. The union’s lawsuit was in response to a request from The Telegraph for the salaries of Pennichuck’s managers and employees.

The Telegraph filed its request following the sale of the water utility to the city of Nashua last week.

The union’s filing seeks to prevent The Telegraph from obtaining and publishing salaries of its employees, arguing that the water utility is not subject to New Hampshire’s Right-to-Know law.

The lawsuit argues that “employees will suffer irreparable harm if their payment and other compensation, which information is private and with respect to which the employees have had an ongoing expectation of privacy, is disclosed to the public.”

Although Pennichuck Corp. and Pennichuck Water Works are now owned by the city of Nashua, they “are not public bodies required to disclose compensation” under state law, RSA 91-A, the suit argues.

The suit was filed on behalf of Local 8938 of the United Steel Workers, which represents “a majority of the employees” of Pennichuck Corp. and Pennichuck Water Works.

Superior Court Judge Diane Nicolosi granted an injunction Thursday preventing Pennichuck from releasing salaries and related information, and also preventing The Telegraph from printing it. The paper requested the information, but has not yet received it.

“While we have the utmost respect for New Hampshire’s judiciary, this ruling is a clear violation of the Telegraph’s First Amendment rights. It’s unfortunate the court would choose to ignore long-standing legal precedence that a free press is essential to a free society and prior restraint is censorship,” said executive managing editor Phil Kincade.

Nicolosi has scheduled a hearing on the case for Feb. 14.

On Wednesday, Pennichuck Comptroller Bonnie Hartley sent an e-mail to employees notifying them of The Telegraph’s request. “Pennichuck is required to respond and will be providing this information,” she wrote to the employees.

Pennichuck has been a private, for-profit water company since it was incorporated in 1853, but as of last week the city became the sole shareholder in Pennichuck. The Board of Aldermen has final say on the utility’s annual budget, but otherwise the city has no direct say in its operations.

It is believed that Nashua is the only city in the country that owns a private water utility that is supervised by an independent board but still answers to state regulators – all while serving customers outside of the city. Other communities operate municipal water works that are part of local government and subject to the Right-to-Know Law – for example, in Milford – or are served by private water companies which are not subject to the state law.

The lawsuit argues that even though the city now owns Pennichuck, the company does not fall under the state Right-to-Know law’s definition of a “public body” that must release such information.

State law includes a number of definitions of “public body.” The list includes elected officials, tax-exempt corporations, and “any legislative body, governing body, board, commission, committee, agency, or authority of any county, town, municipal corporation, school district, school administrative unit, chartered public school, or other political subdivision, or any committee, subcommittee, or subordinate body thereof, or advisory committee thereto.”

Telegraph publisher Terrence Williams said the newspaper would continue its efforts to obtain the information.

“We interpret these employees as public employees, and as such their compensation is a matter of public interest, and the public has a right to know what that compensation is,” Williams said.

John Patenaude, interim CEO of Pennichuck Corp., said following policy, the company does not comment on litigation matters.

An attorney who is an expert in open records law, who asked to not be identified in this story, said the law doesn’t define whether a for-profit company owned by a municipality is exempt from disclosing public information.

“It doesn’t say anything about a for-profit company,” the attorney said.

He added that it would have been interesting to see what reaction an alderman would have received if he or she had requested salary information.

This is not the first time state courts will have taken up the question of whether an organization with a nontraditional government function must abide by the Right-to-Know law.

The most publicized of late concerned the Local Government Center, which handles a variety of tasks for various public employees in the state.

In January 2010, the state Supreme Court ruled that the center had to release wage and salary information as requested by the Professional Fire Fighters of New Hampshire because the center’s functions were similar enough to and involved government matters of public interest.

The ruling noted that the court had dealt with this question on two previous occasions, concerning an industrial advisory committee in Rochester as well as the New Hampshire Housing Finance Authority. In both cases, the court ruled that the Right-to-Know Law applied.

In one case, the state Supreme Court wrote, “Any general definition can be of only limited utility to a court confronted with one of the myriad organizational arrangements for getting the business of government done. The unavoidable fact is that each new arrangement must be examined anew and in its own context.”

In the 2010 Local Government Center case, the court wrote, “Public access to specific salary information gives direct insight into the operations of the public body by enabling scrutiny of the wages paid for particular job titles. Public scrutiny can expose corruption, incompetence, inefficiency, prejudice and favoritism. … In short, knowing how a public body is spending taxpayer money in conducting public business is essential to the transparency of government, the very purpose underlying the Right-to-Know Law.”

Staff writer Albert McKeon contributed to this report. David Brooks can be reached at 594-6531 or dbrooks@nashuatelegraph.com and Albert McKeon can be reached at 594-6528 or amckeon@nashuatelegraph.com. Also check out McKeon (@Telegraph_AMcK) on Twitter.